Protecting Migrant Workers in a Globalized World

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Protecting Migrant Workers in a Globalized World

March 1, 2005

Feature

By Ryszard Cholewinski

In the economic sphere, globalization is not only characterized by liberalization of trade, services, investment, and capital, but also by transnational movements of people in search of better lives and employment opportunities elsewhere.

Globalization generates intense competition for labor that has had a profound effect in both developed and developing countries. In developed countries' economies, there tend to be more jobs available at the high and low ends of the labor market than in the middle. Available or unemployed national workers are unwilling to fill low-status jobs because of poor pay, dangerous conditions, and the existence of alternative welfare provisions.

Given the absence of a willing domestic workforce, rich countries are increasingly looking outside their borders for low-skilled workers in agriculture, food-processing, construction, manufacturing, and low-wage services such as domestic work, home health care, and the sex sector. Migrant workers and irregular migrants from poorer countries have stepped in to fill the demand.

In addition, receiving countries concerned with deregulating the labor market and making it more flexible have made it easier for cost-conscious and competition-minded employers to exploit migrant workers — at the expense of formal employment and human rights protections. This is especially true as the informal sector or "underground economy" has expanded in wealthy countries, providing increased risks and rewards for immigrants.

In this economic climate, therefore, protecting all workers and particularly migrant workers, both those lawfully resident and those in an irregular situation, is becoming paramount.

Yet, numerous shortcomings and gaps in the existing, international legal framework mean that many migrant workers lack the protection they need. Major human rights organizations, including Amnesty International and Human Rights Watch, have begun to voice their concerns about the treatment of migrant workers, and they have helped put a spotlight on migrant worker issues.

Migrant Worker Protection Today

The main standards protecting migrant workers come from the United Nations agency devoted to labor issues, the International Labor Organization (ILO). The ILO has two legally binding instruments relating to migrant workers: Convention No. 97 of 1949 (C97) concerning Migration for Employment and Convention No. 143 of 1975 (C143) concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers. Both are complemented by non-binding recommendations.

C97, which applies to the whole labor migration continuum from entry to return, covers the conditions governing the orderly recruitment of migrant workers. It also articulates the principle of their equal treatment with national workers regarding working conditions, trade union membership and enjoyment of the benefits of collective bargaining, accommodation, social security, employment taxes and legal proceedings relating to matters outlined in the convention.

The right to work is a fundamental right, as well as one of the keys to exercising other rights.

The scope of C143 is broader. Adopted at a time when particular migration abuses, such as the smuggling and trafficking of migrant workers, were attracting the attention of the international community (which remains the case today), this instrument devotes a whole section to irregular migration and to interstate collaborative measures considered necessary to prevent it. It also imposes an obligation on states "to respect the basic human rights of all migrant workers," confirming its applicability to irregular migrant workers.

In addition, the United Nations, which has a broad mandate to protect human rights, adopted the International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICMW) in 1990; it came into force in July 2003. Like the ILO instruments, it covers the entire migration process. However, only 27 states have ratified the ICMW, none of them major receiving countries.

In addition to underlining many of the traditional civil and political rights found in other, more general human rights instruments that apply to all persons, including migrant workers and their families, the ICMW clarifies that basic economic, social, and cultural rights apply to both regular and irregular migrant workers. However, the ICMW permits states to limit the rights of certain specific categories of temporary migrants, such as seasonal workers, project-tied workers, or specified-employment workers.

Despite their comprehensive nature, these instruments provide inadequate protection because the labor migration landscape has changed since they were first adopted. These changes include

the decreasing significance of the state in recruiting migrant labor and the increasing importance of private agents and intermediaries;

the feminization of migrant labor with women migrant workers predominant in the sex sector and domestic work — areas characterized by a strong bond of subordination between the employer and employee, and usually beyond the protection of labor law;

the increasing short-term nature of labor migration;

the considerable growth in irregular migration and the need for states to balance control measures with measures that facilitate labor migration and protect migrant workers.

In particular, feminization of the migrant labor force and states' increasing reliance on temporary workers are not adequately reflected in ILO instruments or in the ICMW. Another major obstacle is the chronic reluctance of states to agree to legally binding, multilateral instruments that regulate international labor migration and protect the rights of migrant workers. These three challenges are explored in more depth below.

Women Migrant Workers

Women migrant workers often take jobs in unregulated low-skilled sectors, such as domestic work, child care, elder care, and commercial sex work. Furthermore, this employment tends to be irregular, unprotected by labor legislation and, often in the case of sex work, facilitated by criminal trafficking networks.

Indeed, the economic pressures of globalization have arguably exacerbated the exploitation of migrant women. While the ILO and UN conventions contain specific provisions combating trafficking, they do not instruct state parties to devote particular attention to the types of employment in which women predominate. Certain categories of workers, such as seasonal workers in the ICMW, are identified separately, but there is no specific reference to domestic work, for example.

However, a note of caution should be advanced against the identification of separate categories of migrant workers in these instruments as this does not necessarily advance their protection. Indeed, the specific categories, including seasonal workers, listed in the ICMW, are accompanied by somewhat lesser safeguards.

In this regard, the ILO Committee of Experts on the Application of Conventions and Recommendations contends also that a revision of the categories of "artists" and "members of the liberal profession" in the ILO instruments may well be necessary, "particularly in light of the extent of the phenomenon of women migrant workers being recruited for such employment only to find themselves working in the sex sector."

Temporary Migrant Workers

Globalization has fueled the growth in temporary migrant worker programs in a number of receiving countries. This growth, one of the consequences of "flexible" labor markets, has resulted in a number of difficulties in ensuring their protection.

In many countries with such programs, these workers can find it difficult or even impossible to change their employers or employment, bring over their families, gain secure residence status, and access the full range of social benefits in the country of employment.

Unskilled workers often use private recruitment agents who compete intensely for the sale of their labor to employers.

Moreover, temporary migrant workers are vulnerable to certain abuses in the recruitment process. In particular, unskilled workers often use private recruitment agents who compete intensely for the sale of their labor to employers in the destination country.

Such abuses include deliberate misinformation about the working and living conditions in the country of employment and the charging of excessive fees. The requirement in some countries that employers sponsor migrant workers can also result in late payment of wages, the substitution of the original employment contract with one containing fewer safeguards for the migrant worker, restrictions on freedom of movement, and, in some cases, physical or sexual intimidation.

Importantly, the ILO's main conventions protecting migrant workers — C97 and C143 — and the ICMW do not generally distinguish between migrant workers admitted for settlement and those admitted for short-term employment in terms of their protection, although some adjustments have been made to address particular categories of temporary work.

Students and trainees are excluded from the equal treatment part of C143 and the ICMW, while, as noted above, the rights of seasonal workers, project-tied workers, and specified-employment workers can be curtailed under the ICMW.

Aside from these adjustments, rights' safeguards for temporary migrant workers and those with a more secure residence status should be equivalent in principle. However, the rapid growth in temporary migrant worker programs and their potentially adverse impact on the protection of migrants' rights are not addressed with sufficient clarity or detail by these instruments.

Attempting to Ratify Standards

In addition to the "protection gaps" identified above, states have been unwilling to sign legally binding, multilateral instruments regulating international labor migration and protecting the rights of migrant workers.

Sending countries feared that ratification would result in a loss of labor markets in destination countries to their non-ratifying competitors.

In conducting its General Survey in 1999 on the main ILO instruments on migrant workers, the ILO's Committee of Experts identified the following principal obstacles to their ratification:

the incompatibility of national legislation with the instruments' provisions in many sending and receiving countries;

national labor administrations' lack of financial resources to implement the instruments;

the existence of difficult economic situations and high unemployment rates in some countries with the result that preference is given to national over foreign labor;

the relative novelty of international labor migration for a number of countries (e.g., Azerbaijan, China, Romania, and Tajikistan) and the need to develop appropriate national measures;

the specific conditions of labor markets in certain countries (for example, the high proportion of foreigners in the labor force in countries such as Bahrain and Luxembourg);

the view of some major sending countries (e.g., Mexico and Pakistan) that the instruments are primarily concerned with addressing labor shortages in countries of employment rather than the needs of sending countries.

Some of these obstacles also apply to the non-ratification of the ICMW, such as its incompatibility with national legislation in many countries and the technical challenges it poses for domestic administrations to implement it given the ambitious text and its complexity.

Other obstacles relate to the general lack of awareness and knowledge of the ICMW, the absence of adequate promotional activity, and, most importantly, lack of political will.

In a UNESCO-sponsored study in 2003, researchers Nicola Piper and Robyn Iredale, both from the Asia Pacific Migration Research Network, investigated why seven countries in the Asia-Pacific region were not willing to sign the ICMW. They identified two major hurdles, one applicable to sending countries and the other to receiving countries.

First, sending countries feared that ratification would result in a loss of labor markets in destination countries to their non-ratifying competitors. Second, receiving countries in the region faced sensitive political obstacles because of the protections the ICMW would give to irregular migrants and the perception that it would require the admission of migrant workers' family members.

The study concluded that efforts should focus on changing receiving countries' domestic laws and policies, which could then be complemented by the drafting of a non-binding recommendation or declaration.

New Approaches to Protecting Migrant Workers

The relatively low rate of ratification of international labor instruments, together with their poor implementation, has resulted in the development of significant, alternative approaches to the protection of migrant workers.

In particular, such approaches can be seen in the recent arguments and activities of the ILO and in developments in the activities of the UN's Special Rapporteur on the human rights of migrants.

The ILO's International Labor Conference, for example, adopted a plan of action for migrant workers in June 2004. Rather than asking states to agree to a set of binding principles, this plan seeks to work with other international organizations to develop a non-binding, multilateral framework for a rights-based approach to labor migration that takes into account labor market needs.

The UN's Special Rapporteur, Gabriela Rodríguez Pizarro from Costa Rica, has issued five general reports during her tenure, all of which examine the situation of migrant workers. Pizarro has also visited and reported on Canada, Ecuador, Iran, Italy, Mexico, the Mexico-U.S. border, Morocco, Peru, the Philippines, and Spain. The ICMW figures prominently in a number of these reports, and Pizarro has used the reports to encourage Canada, the U.S., Iran, Peru, and Spain to ratify the ICMW.

The International Organization for Migration (IOM) and UNESCO, along with NGOs and sending countries interested in protecting their workers, such as the Philippines, are also revitalizing the migrant workers' rights agenda.

Conclusion

Migrant workers, and in particular certain vulnerable categories, such as women domestic workers and temporary and irregular labor migrants, continue to suffer abuses and malpractices at the hands of employers, government officials and the general population in receiving countries. This persists despite standards that have been painstakingly devised to enable them to lead a dignified existence when resident and employed abroad.

The reasons for the "protection gap" — feminization of the migrant labor force, states' reliance on temporary workers, and states' reluctance to agree to legally binding, multilateral instruments — linger and seem likely to remain in the near future. However, international organizations and other players, particularly NGOs, have shifted their strategies in search of solutions that do not necessarily require the world's major receiving countries to sign legally binding instruments like the ICMW.

Globalization, often perceived as a threat to migrant workers and the realization of their rights, has also played a role in bringing together diverse and geographically distant voices to their defense, and may yet help bring about important changes at the national and international levels that will ultimately benefit migrant workers.

This article is adapted from a chapter written for the book on Globalization and Labour Law (edited by John Craig and Michael Lynk), to be published by Cambridge University Press in 2005.

Sources:

Cholewinski, Ryszard (1997). Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, Oxford University Press.

de Varennes, Fernand (2003). "Strangers in Foreign Lands: Diversity, Vulnerability and the Rights of Migrants." Available online.

Piper, Nicola and Robyn Iredale (2003). "Identification of the Obstacles to the Signing and Ratification of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families." Available online.

Ruhs, Martin (2003). "Temporary Foreign Worker Programmes: Policies, Adverse Consequences, and the Need to Make them Work," International Labor Office. Available online.

Stalker, Peter (2000). Workers Without Frontiers: The Impact of Globalization on International Migration, International Labor Organization.